Volume 18 — Abbott's New York Practice Reports

An alternative writ of mandamus was obtained directed to Andrew J. Campbell, clerk of the Third District Court in the city of Hew York, requiring him to issue execution upon a judgment recovered by default in that court. On the day of the recovery of the judgment, the justice of the Fifth District Court was sitting in the Third District in the absence of the local justice. Subsequently, by order of the local justice, the judgment was opened and the default excused.

The surplus in controversy remained after a sale in foreclosure of property in 8th-avenue, New York, in an action by Charles H. Frost against Andrew Quackenbush, Valentine Koon, Thomas Southard, and others.

The application was made on the relation of A. Oalcey Hall, district attorney, against the Board of Supervisors of the city and county of New York.

Motion to require a further bond as security for costs. This action was brought by Ebenezer Montague against Charles R. Bassett. On motion, the plaintiff was required to file a bond as security for costs, “ pursuant to the provisions of the Revised Statutes, conditioned to be void if the obligors named in said bond pay on demand all costs,” &c. The plaintiff filed a bond conditioned to be void if the plaintiff should pay on demand all costs.

Motion to set aside judgments for irregularity. The first action was by Abraham Hoffnung against William Grove and Frederick Allison; the second action was by Jules Sazerte against the same defendants. The defendants served answers, which plaintiffs’ attorney returned as informal and defective. The answers were not re-served. Plaintiffs made motions against the answers as sham and frivolous.

In October, 1855, the plaintiff, Edward Elsworth, recovered a judgment in this court against the defendants, George and Joseph W. Caldwell, as copartners, for the sum of $1,137.18.

I. February, 1857.—Appeals from an order directing that one of the defendants be subrogated to the rights of the plaintiff, and from a second order modifying the first. This action, for the foreclosure of certain mortgages, was brought by William McLean against Minthorne Tompkins, The Staten Island and New York Ferry Co., Horace F. Clark and twenty-six others.

Appeal by plaintiff and several purchasers, from an order of the Kings County Court directing a resale in five foreclosure actions. The plaintiff in all the actions was David H. Gould. The defendants in the first action were Edwin B. Gager, William P. Libby, and others; in the second, William A. Woodward, Libby, and others; in the third, Henry Mathews, Libby, and others; in the fourth, Alice C. Lawler, Libby, and others; in the fifth, Clement Kain, Libby, and others.

Trial before a referee. Henry C. De Rham and others brought two actions against William Grove and Frederick Allison, to recover upon two foreign bills of exchange drawn by the latter, and protested for non-acceptance. The material facts are stated in the opinion.

This action was an action for an accounting and distribution of partnership assets; and was brought by Elias Fassett against Samuel W. Tallmadge and others.

Common law certiorari to review the decision of referees on an appeal in highway proceedings. The defendants, Benjamin Ferris and others, were appointed by the county judge of Washington county referees to determine an appeal brought by Gilbert Robinson, the relator, from the determination of the commissioners of highways of the town of Argyle in laying out a highway through the lands of the relator.

<p>Shipping.—Liability of Owner.—Appeal.—Motion fob Hew Trial.</p> <p>In an action for supplies furnished to a registered vessel, the question is, to whom was the credit given; and in the absence of an express contract, the law adjudges it to have been given to the party in actual possession of the vessel.</p> <p>A person in possession of a vessel, and claiming to be proprietor, has no implied authority to bind the registered owner for supplies.</p> <p>On a motion for a new trial, the Supreme Court at general term may examine the evidence in the cause, at large, overrule the conclusions of fact to which the jury have arrived, and order a new trial upon the whole case.</p> <p>But the Court of Appeals on appeal from their decision must affirm the order, unless the conclusions of fact arrived at by the general term are wholly unsupported by the evidence.</p>

Motion to set aside a judgment, or for a stay of proceedings. The plaintiff, Christopher Hoffman, procured a summons to be issued by a justice of the peace residing in the town, of Bergen, in favor of said plaintiff, against Eli H. Fisher, defendant, requiring him to appear before the said justice at a time and place therein specified, to answer the plaintiff, &c., and delivered the same to a constable to be served.

This action was brought by Pliny Jewell to recover the amount of a promissory note, of which the following is a copy: Lockport, May 30,1857. One year after date I promise to pay to the order of Wm. J. Dunlap, four hundred dollars at Niagara County Bank, value received. O. C. WRIGHT. Indorsed, Wm. J. Dunlap, T. C. Taylor. The defendants, who were Wright, Dunlap, and Taylor, interposed the defence of usury.

The facts are stated in the opinions. -, for the appellants. -, for the respondents.—I. The appellants have never been made parties to this suit, but have come in under our proceedings,—his appearing in this case is objected to on that ground. 1. Parties having an interest in the subject-matter of the suit, must either be made parties to the suit, or the bill must be so framed as to give them an opportunity to come in and be made parties.

<p>Writ of error to the Oyer and Terminer of Kings county.</p> <p>The facts are stated in the opinion.</p>

Demurrer to answer.' In this action, when it came up upon this demurrer, Erancis Vose was the plaintiff, and Horace Galpen and eight others were defendants. The complaint set forth substantially as follows: That the defendants, together with the plaintiff, became trustees under an agreement, dated October 3,1861, to carry its provisions into elect for the benefit of the plaintiff, and other bondholders, who were creditors and cestuis que trust.

Motion to quash writ of mandamus. The relator, Robert Cunningham, obtained a writ of mandamus directed to Matthew T. Brennan, comptroller of the city of New York, to obtain payment of a claim against the city for services rendered under a contract with the Corporation. The contract had not been performed within the time therein specified, but the Common Council of the Corporation had passed a resolution directing the payment, notwithstanding the forfeiture.

This action was brought by Patrick O’Reilly against George Good, the United States deputy collector of internal revenue for the ninth district of the State of blew York. The defendant was assessed under the United States Internal Revenue Act, as a liquor dealer, and for non-payment of the tax the defendant' seized his goods.

This was an action to compel the defendants, a hanking corporation, to allow the transfer of one hundred shares of their stock, standing in the name of Robert Middlebrook, deceased, to his son, Louis N. Middlebrook, the plaintiff. The deceased was a resident of Connecticut, and died there, leaving a will by which he gave to the plaintiff a legacy, payable in bank stock, to be selected by the plaintiff and appraised.

This action was brought by Casper 0. Childs, a receiver of the property of William C. Lyons, appointed in supplementary proceedings, against George and Benjamin Fox, W. 0. Lyons, and W. H. Lyons, to set aside an alleged contract between George and- Benjamin Fox, and William H. Lyons, and a mortgage made by William IT.

A motion was made in this action that the complaint and bill of particulars be amended, so as to make the precise nature of the charge or claim against the defendants apparent, and so as to apprise the defendants of the ground upon which the plaintiff rested the action.

<p>Pleading.—Motion to Strike Out.</p> <p>An answer should not be struck out as sham except in a clear case.</p> <p>A motion “ for judgment in the action on account of the frivolousness of each and every defence set up in the answer,” cannot be granted if any defence is not frivolous.</p> <p>The Code authorizes a motion for judgment upon an entire pleading as frivolous (Code, § 247); but if parts only are bad, relief is to be had by a motion of a different character under sections 152 or 160. It is true that there may be no objection to combining both of these applications in one motion, but in that case, whether judgment on the whole answer can be grante'd, must depend on whether the parts of the pleading objected to are stricken out, and, if they are, whether the whole answer as it then remains be frivolous.</p>

In this action, brought by Thomas Watson against Albert Morton, the summons was properly stamped as required by the Internal Revenue Laws of the United States; but the copy thereof which was served on the defendant contained no indication that such was the fact, and it did not appear that the original was shown to the defendant at the time of the service.

This action, which was brought by Nicholas P. Trist against Joseph A. De Cabenas, executor, &c., was at issue and was referred to a referee some time during the year 1860. In March, 1862, the case was submitted to the referee for his decision. The time for the referee to make his report was not extended by the order of the court or the consent of parties.

Writ of error. The plaintiff in error, Charles H. Walters, was indicted in the court below, in December, 1863, for the murder of Nancy Elizabeth Vincent, on the 30th day of November, in the same year. At a term of the court, held on the 9th day of February, 1864, the plaintiff in error was brought to trial upon the indictment, and was convicted of murder in the first degree, and judgment of death pronounced upon him, to be executed on the 15th day of April, 1864.

Motion by the plaintiff to set aside an execution on which he has been arrested, and by virtue of which he is in the custody of the sheriff of Broome county. The plaintiff, William.

<p>Motion for new trial on a case.</p> <p>The facts sufficiently appear in the opinion.</p>

This action was brought by William W. Niles against Ludlow A. Battershall, and several other defendants. The nature of the case sufficiently appears in the opinion. The plaintiff having recovered judgment upon the report of a referee, defendant Battershall appealed. I. October, 1863.—Motion to stay proceedings. The defendant served notice of appeal in due season, but gave no undertaking for costs, &c., for want of which the plaintiff refused to receive the notice.

This ease arose upon the removal of the relator, Miss Mary A. McHugh, from the position of first assistant teacher of Grammar School Ho. 23, by the local board of trustees of common schools of the Sixth Ward. The relator was employed by the board of school trustees of the Sixth Ward as a teacher in one of their grammar schools on the 23d day of July, 1856, at a salary of $400 per annum.

<p>Duty of Testamentary Trustee to Prove Will. — Cost of Foreign Probate. — Eeimbubsing Trustee. — Judgment on Ekmittitur.—Ekstitution under Order for Hew Trial.</p> <p>Where a will leaves personal property situate in this State, and real property situated in another State, to an executor, who is also made trustee of the property, and the will is proved in this State as being the residence of the testatrix, it is incumbent on the executor to prove the will in such other State; and the executor, on accounting as such trustee, should he allowed the costs of both proceedings, unless they were made in bad faith.</p> <p>Costs incurred by a trustee in protecting the estate confided to his care should be reimbursed to him out of the estate ; and, if the estate consists of both real and personal property, from the personal property first. And it is error not to allow such costs upon an accounting, where a decree of a court of foreign jurisdiction directs them to be paid by the trustee out of the estate of the deceased, and they have actually been paid under such decree.</p> <p>A judgment of the Court of Appeals ordering a hew trial is not a final judgment in the cause.</p> <p>It is irregular to permit a judgment of restitution to be entered without notice to the party to be affected by the order, where it has not been directed by the appellate court in the remittitur.</p> <p>Where the appellate court directs a new trial, restitution will not be directed unless the remittitur contains such direction, or the judgment is reversed for such reasons as would preclude the plaintiff from succeeding in such new trial.</p>

<p>Appeal from an order for judgment on demurrer.</p> <p>The complaint in this action which was by Sheldon A. Hull against Stephen Vreeland, after describing certain promissory notes which he alleged the defendant had made and delivered to him, averred that in Jersey City, in presence and hearing, &c., the defendant spoke “ these words, viz.: That he, the plaintiff, had falsely and feloniously forged his,” the defendant’s, “ name to the said notes.” * * * “And for a further and separate cause of action,” averred that “the defendant went before the grand jury of Hudson county, in the State of New Jersey, and falsely and maliciously complained before said jury, and stated under oath, that the plaintiff had * * * * falsely and feloniously forged his, defendant’s, name to said notes,” &c., and that in consequence thereof the said grand jury indicted the plaintiff for forgery.</p> <p>The complaint also alleged the arrest and trial of the plaintiff, and that he was “ acquitted by the jury of said charge.” That “the statements and oath of defendant before the grand jury * * * were wholly false and malicious; that the defendant well knew at the time he made such statements and oath that the signatures to said notes were genuine,” and averred special damage.</p> <p>To this complaint defendant demurred. 1st. That several causes of action were improperly united. 2d. That the complaint did not state facts sufficient to constitute a cause of action. 3d. That the court had no jurisdiction of the subject of the action.</p> <p>The cause was heard on the demurrer at special term, in June, 1860, and the following opinion given:</p>

<p>Examination of Parties to Action.—Construction of Section 399 of the Code.</p> <p>The exception in the provision of section 399 of the Code of Procedure, relating to examination of parties, that a party shall not be examined in his own behalf, in respect to any transaction or communication bad personally by such party with a deceased person, in an action against his representatives, was not designed to exclude the testimony of the living party, as to an occurrence at which the deceased need not have been present, or as to a fact he need not have known, to make evidence of it admissible.</p> <p>The -word “transaction” in section 399 of the Code, does not embrace all the occurrences which go to make up a cause of action, but only such as must have been communicated to the deceased person to give them effect.</p>

An action was commenced by Charles A. Robbins, of Iowa, against Henry Wells, John Butterfield, and others, doing business under the name of “ The American Express Company.” Mr. Robbins having died pending the action, Mary J. Robbins, his administratrix, under letters of administration issued in Iowa, obtained leave to revive the suit by filing a supplemental complaint. Subsequently at the requisition of the defendants she filed security for the costs.

<p>Costs.—Cedes Denying New Trial.</p> <p>Under an order denying a motion on a case made, for a new trial, “ with costs,” only costs of an order, that is ten dollars, are taxable.</p>

<p>Motion to dissolve a preliminary injunction.</p>

This was an appeal from a judgment entered upon a verdict rendered under the direction of the court. The action was brought upon a n.ote made by the defendants’ testator for $8,000.

This was an appeal from an order made at special term, directing the costs to be readjusted in conformity with the Code as it stood in May, 1862 (the time when the complaint was dismissed), and deciding that the application for a new trial was a motion, for which only motion-costs should be given. The complaint was dismissed in May, 1862, but the motion for a new trial was not made until May,. 1864, and the costs were taxed under the law of 1864.

This action was commenced by Minor T. Broderick against Burr Shelton, before a justice of the peace, and was founded on a promissory note. The plaintiff recovered a judgment, and the defendant appealed therefrom to the Schuyler County Court, where the cause is to be retried.

Demurrer to complaint. The complaint in this action set forth that on the 20th of July, 1863, an order was granted in supplemental proceedings taken against one Hubbard, to examine the plaintiff relative to his indebtedness to Hubbard, and enjoining him from disposing of such indebtedness. That the order was served and the examination taken, from which it appeared that the plaintiff was indebted to Hubbard in the sum of $515.49.

This was a motion to strike out certain portions of the complaint as irrelevant, and to render the complaint more definite and certain.

This action was brought by John Scudder upon a promissory note made by the defendant, Catherine Gori, against her and the indorser. The complaint was in the usual form of a complaint upon a promissory note.

On the 17 th of June, 1861, an action was commenced in the Supreme Court by August Belmont & Co., plaintiffs, against William G-. Lane and others, defendants in the present action, to recover an amount exceeding $30,000.

This cause being at issue, was placed upon the calendar and called in its proper turn, and neither party appearing, went to the foot of the calendar. The defendant subsequently made a motion at chambers for an order dismissing the complaint for unreasonable delay of the plaintiff to prosecute.

Motion to commit for contempt. An order having been granted in the above action by Judge Barnard for the examination of the defendant, and the defendant having failed to appear and be examined, an order was subsequently issued by the same judge that the defendant show cause why he should not be committed for a contempt, which order was placed on the calendar, and from time to time continued and adjourned there until some time in September, when an attachment was issued by…

Marston of a. contempt. An action had been brought by Nathaniel L. Griswold against George F. Power and others, in which judgment was obtained and execution issued against Power. On the return of the execution unsatisfied, supplementary proceedings were commenced by Griswold against Power. By his examination it appeared that he had been a partner from 1850 to 1863, in the firm of Marston & Power.

This action was brought by Hester Mary Howard, on a bond made by the defendants Terence Farley and Michael Treacy, in the penalty of seven thousand six hundred dollars, conditioned to pay three thousand eight hundred dollars on the 21st day of May, 1865, with interest payable semi-annually.

Motion to set aside a foreclosure sale, and for a re-sale. The sheriff sold mortgaged premises under a judgment of foreclosure, and on the sale gave notice that the purchaser bought at his own hazard as to title. The defendant moved to set aside the sale on the ground that, in consequence of that announcement a less price had been obtained than the property ought to realize.

<p>Motion to vacate judgment.</p> <p>The defendant after employing an attorney, who appeared for him in the action, made an offer under section 385 of the Code to allow judgment to be taken against him, signing it in his own name. The plaintiff’s attorney accepted the offer, and entered up judgment in accordance therewith. The defendant’s attorney moved to set aside the judgment for irregularity.</p>

Motion to strike out part of an order. The plaintiff, Henry Woodman, having taken proceedings supplementary to execution under section 292 of the code, and having examined a witness therein, and it appearing on the face of such examination, that the witness had agreed to pay to the judgment-debtor a tariff on goods to be thereafter manufactured by the witness in accordance with a patent procured by the defendant Rollin A. Goodenough, had obtained order for the appointment of…

Motion to quash the return to an alternative mandamus, or make it more definite and certain; also, for a peremptory man damns.

Motion to set aside an attachment. The plaintiff in this canse brought his action to recover damages for an alleged conversion of his personal property situated in Accomac county, Virginia, by the defendants, who, it was claimed, had in Virginia, under color of process, levied on it and sold it as the property of one Bash.

D. McMahon, on behalf of the plaintiff, moved for a commission to issue to Denver City, Colorado territory, and to Fort Smith, Arkansas, to take the testimony of three witnesses named. The counsel desired to have a provision in the order, that the plaintiff should have liberty to produce and examine before the commissioners any other witnesses, though not named in the commission; such examination to be on interrogatories to be annexed to and sent with the commission.

On the petition of Ward & Gove, a motion was made before this court for an order compelling the plaintiff to amend his-, proceedings, by making them parties-defendant in this action.

<p>Practice.—Ron-suit. ■ N</p> <p>It is not good practice to non-suit the plaintiff upon his opening address, unless he makes in it an admission fatal to his action.</p> <p>The counsel for the plaintiff having opened his case in an address to the jury, the counsel for the defendant moved for a non-suit.</p>

Motion to strike out an answer as to one defendant for defective verification. The complaint in this action, and in another brought at the time, against the same defendants, by one Delafield, set up a con- tract on the part of Edward D. James and Sarah his wife, to convey a portion of the wife’s estate, and claimed damages against both for failure to fulfil the contract, and claimed also that the j udgment be enforced against the wife’s estate.

Demurrer to complaint. William Palen, receiver of Henry Banye, appointed in supplementary proceedings, commenced an action against Ezra S. Bushnell and the judgment-debtor as defendants.

The defendant, Joseph C. Johnson, in this action, and Ezra S. Bushnell and Henry Banye, defendants in another similar action, demurred to the complaints of William Palen, who brought th.e actions as receiver of Henry Banye, assigning various _ grounds for the demurrers. The demurrers were overruled in each case with leave to the defendants to answer within twenty days. {Ante, 301.) From the order entered in conformity with the decision, the defendants appealed.

<p>Action upon three promissory notes.</p> <p>Solomon Kohnstamm, on the 17th day of November, 1863, commenced this action against Charles W. Foster and others upon three promissory notes made by Foster & Co., the first of which, for ten thousand dollars, matured October 14, 1857, and the others, for smaller amounts at a later date. On the 31st December, 1857, the firm of Foster & Co. had made a general assignment for the benefit of creditors, and among their liabilities enumerated these three notes, and they participated in the subsequent dividends of the assignees. One of the defendants interposed the Statute of Limitations in this action as a defence to the first of these notes, but offered to allow judgment for the other two.</p> <p>Pending the litigation, Joseph Stuart and Edgar S. Van Winkle were appointed trustees of the estate of the plaintiff, and the cause was revived and continued in their name.</p> <p>The action was tried by the court without a jury, and judgment rendered for the plaintiffs, the following opinion being delivered.</p>

The facts of this case are briefly as follows: Theodor Schmidt having commenced an action against Schroeder & Co., issued to the sheriff of Bichmond county an attachment against the property of the defendants, which was levied by him upon hides in hulk on Tjoard the barque Seneca at the quarantine.

Motion by defendant, Ephraim Ketchum, to set aside an ex ecution issued on the judgment in the cause to the sheriff of Tioga county, in January, 1865. The judgment was rendered in favor of the plaintiff against the defendants, who were Lucius Stowell, Henry Ketchum, and Ephraim Ketchum, on the 27th day of January, 1855, for $608.69 damages and costs, in the county of Cortland, and the same was docketed in the counties of Broome and Tioga.

Ephraim Brockett, the son and administrator of Hezekiah Brockett, deceased, made a claim against Samuel H. Bush, the executor of Asenath Brockett, the wife of Hezekiah, and mother of the plaintiff, for various articles of personal property, and a note for $50, taken by Mrs. Brockett, and used by her after her husband’s death.

This was an arbitration proceeding' under the statute. (2 Rev. Stat., 541.) Stille Manning and William A. Pratt having various, controversies arising,out of business transactions, submitted them to arbitration, and the arbitrators, among other matters, awarded that Manning was indebted to Pratt in the sum of $6,960.05, as a just balance of the claims of the parties submitted.

<p>Application for probate of will of Abraham R. Lawrence, deceased.</p> <p>The facts are stated in the opinion.</p>

Petition by .Mrs. Mary G. Williams, for a grant of letters of administration on the estate of her late husband, Elijah D. Williams, deceased. .. The petitioner had formerly applied for letters of administration, and consented in writing to be joined with John Owen, a stranger to the estate, not otherwise entitled to administration. Letters were accordingly issued to them jointly, as administrator and administratrix, on the 7th day of June, 1864.

<p>Appeal.—Vacating Assessments.—Special Peoceedings.</p> <p>An appeal ^jes to the court at general term from an order made at special term upon an application to vacate an assessment in the city of New York, for fraud or legal irregularity.</p> <p>The proceedings to vacate such assessments, given by the act of 1858, are special proceedings, within the meaning of the act of 1854, which gives appeals from orders, &c., of court in special proceedings.</p>

Trial by the court. This action was brought by Smith Davis and Brian Beilly (for the latter of whom Oliver Davis was afterwards substituted) against Cornelius E. Duffie, Jonas Conklin, Gerardus A. 0. Van Beuren, William V. Brady, Thaddeus Sherman, Senior, Thaddeus Sherman, Junior, Edgar M. Brown, The East Eiver Savings Institution, and John W. Mitchell, impleaded with others.

The complaint in this action alleged the making of a bond by the defendants in the penalty of $7,600, conditioned to pay $3,800 on the 21st of May, 1865, with interest payable half-yearly. The complaint further alleged that a half-year’s interest became due on the 21st of Hovember, 1863, which remains unpaid, whereby the defendants became liable to pay to the plaintiff the sum of $7,600, the penalty of the bond.

Motiou to dissolve an injunction. John Hecker brought suit, as a tax-payer of the city of Hew York, against the corporation of that city, and the mayor, comptroller, city inspector, corporation counsel, and city chamberlain of that city, and F. A. Palmer, president of the Broadway Bank, to restrain them from paying certain sums for the cleaning of the streets.

This was an appeal from an order made at special term, by which a part of the plaintiff’s affidavit presented on the motion made by him was struck out as scandalous. The motion is reported Ante, p. 266.

Motion to dismiss complaint. This was an action for libel against the proprietors of the Sunday Mercury for the publication of matter 'purporting to be the proceedings before a grand jury to obtain the indictment of the plaintiff. The plaintiff, after proving the publication of the libel and the circulation of the paper, rested.

This action was brought by Sigismund Houseman against Morris H. Rosenfield upon a promissory note, dated March 13, 1856, for $546.70, payable six months after date. The suit was commenced April 21, 1864, and after issue joined by an answer which set up the Statute of Limitations, and the cause was placed on the calendar by the plaintiff’s attorney.

Motion to strike out the complaint.. This action was brought by William B. Goff against George M. Egerton and others. The complaint alleged that the plaintiff had deposited a sum of money with the defendants, which the defendants had converted to their own use, and which the plaintiff demanded.

This suit was brought by the attorney-general for the dissolution of the corporation-defendant, for certain irregularities in the articles of incorporation and alleged unlawful acts of the officers of the company; and a motion was made for the appointment of a receiver during the litigation and for an injunction. On the hearing of the motion, the objection was taken that the court had no power to appoint a receiver in cases like this.

, Mrs. Arthur, one of the plaintiffs, resided in the State of Iowa; the co-plaintiff, Mrs. Bolton, resided- at Staten Island, in the county of Richmond,' Hew Yolk. On the 27th of September, 1864, an order was granted in this action on the application of the defendants, requiring the plaintiffs to file security for costs. From that order the plaintiffs appealed. .

■ A foreclosure suit was commenced by James B. Laing against Delos E. Titus, James G. McAdam, and Phebe McAdam, his wife, and others, and the decree entered December 30, 1856, the amount due the plaintiff thereunder being $2,252.08. On the 4th of February, 1857,- David Bebell purchased this decree from the plaintiff for $1,887, the balance of the decree being paid by McAdam and wife. Some sums were paid, and one or two accountings had by the McAdams with Mr. Bebell.

This was an action of trover originally' brought in a justice’^ court, in which court the plaintiff recovered a judgment, from which judgment the defendant appealed to the Chenango County Court, and the cause was tried in the County Court in December, 1863, before Hon. Dwight H. Clarke, county judge, and a jury.

Demurrer to complaint. This action was brought by John W. Warth against William Radde and the Potter County Forest Improvement Company. The defendant Radde was president and treasurer of the,Pennsylvania Land and Farm Association, an unincorporated company of more than seven persons, such as under the Laws of 1846 and 1851 may sue and be sued in the name of such chief officer. The contents of the complaint are stated in the opinion.

This action was brought by Stephen Brush, executor, &c., of Robert Hyslop, deceased, against William Lee, William Edmonds, George W. Riles, and A. B. Clark.

<p>Appeal from an order overruling a demurrer to complaint.</p> <p>The plaintiffs, a banking incorporation formed under the laws of the State of New York, brought this action to recover damages for a publication made by the defendant in a paper called “ Thompson’s Bank Note and Commercial Reporter,” which stated that there were 50’s and 100’s of notes of the bank said to be counterfeits, and as the signatures on the genuine notes of the bank are engraved, the officers were in doubt as to which were good.</p> <p>The complaint after setting out the above matters and the circulation of the paper, averred that divers neighbors and citizens to whom the innocence of the plaintiff was unknown, have since the publication, refused to receive the notes of the plaintiffs, and have refused to have any dealings or business transactions with the plaintiffs in their business of banking as they formerly had, to the great damage of the plaintiff.</p> <p>The complaint also contained similar allegations as to another publication by the defendant, that the bank would riot pay drafts upon it, and that he saw no reason why the bank may ■not at any time be closed by an injunction, with similar averments as to damage. •</p> <p>The defendant demurred to the complaint:</p> <p>1st. That the complaint does not state facts sufficient to constitute a cause of action.</p> <p>2d. That the plaintiff has no legal capacity to sue.</p> <p>These causes of demurrer were applied to both counts of the complaint.</p> <p>The demurrer was overruled by Mr. Justice Clerke at special term, and judgment ordered for the plaintiffs.</p> <p>The court placed the decision upon the ground that a corporation has the same right as an individual for its business and property, and could maintain an action for libel.</p> <p>The following opinion was rendered.</p>

A majority of the directors of the New York Consolidated Stage Company, at a special meeting on the 4th day of November, 1864, passed a resolution assigning all the property and effects of the company to one Augustus Schell, and on the same day a deed was'executed in pursuance of the resolution, assigning all their property to the said Schell, in trust to sell and pay creditors pro rata, and the residue, if any, to the company.

<p>Receives.—Changing Appointment.</p> <p>The court may at" any time before the appointment of a receiver, which they have directed, is consummated, revoke such appointment and appoint another. An order making such revocation and new appointment is discretionary and not appealable.</p>

<p>Appeal from a judgment.</p> <p>This action was brought by Henry H. Ooope as receiver, against Charles S. P. Bowles, Cushing Stetson, Wiliam B„ Bowles, Joseph S. De Agreda, Lorenzo Jove, Esteban Ponte, and Antonio Jove Ponte.</p> <p>The object of the action was to set aside an assignment for the benefit of creditors, executed by or in behalf of the defendants, De Agreda, Jove, and Ponte (who were partners under the firm-name of De Agreda, Jove & Co.), to the defendant C. S. P. Bowles.</p> <p>The allegation of the complaint in reference to the plaintiff’s capacity to sue as receiver, was as follows:</p> <p>“ The complaint of. the plaintiff suing under the direction of this court alleges that, on the 19th day of July, 1858, he was, by an order of this court, appointed receiver of all the property, credits, and effects of or belonging to the above-named defendant, Joseph S. De Agreda, and all property belonging to the defendants, Joseph S. De Agreda, Lorenzo Jove, Esteban Ponte, and Antonio Jove Ponte as co-partners, wheresoever and whatever the same may be, with power to sell personal property and bring suits, and with all the powers of receivers in similar cases, and has filed security according to the terms of the order appointing him such receiver.”</p> <p>The complaint alleged that the assignment was void by reason of fraud, and especially by the preference of fictitious claims; among others, a pretended claim in favor of C. Stetson & Co., of which firm the assignee was a party; and also insisted that it was ineffectual because it was executed by only two of the four co-partners.</p> <p>The cause was tried before I. T. Williams, Esq., referee, who found that the defendants were not guilty of any of the frauds alleged; but he found as matter of fact that the assignment in question was executed by only two of four partners; that there was no proof that the executing parties held powers of attorney of a character that would authorize the execution of that instrument. Also, that there was received by the firm of Stetson & Co., of the assigned estate, $21,873.81. He further found, as a matter of fact,, that the testimony offered by the defendants tending to show a ratification of the assignment by the non-executing partners was too vague, indefinite, and uncertain to establish the allegations of such ratification; and, therefore, that the executing partners had no power from the non-executing partners to execute the assignment at the time they so executed the same, and that the non-executing partners had not since that time ratified the same.</p> <p>He found as matter of law that the plaintiff may legally take this objection, and that as to him the assignment is absolutely void.</p> <p>He found as a matter of fact that the assignors preferred in the assignment certain sums claimed to be owing by said co-partners to the wiyes of two of them; and that the proof tending to show that said wives had separate estates, was sufficient to establish such allegation.</p> <p>He therefore found as a matter of law that the assignment was not void as against the plaintiff by means of such preferences.</p> <p>He further found as a matter of law that unless the said executing partners had, at the time of the execution of said assignment, full and legal power from the non-executing partners to execute the same, so as to transfer the assigned property to the assignee irrevocably at the moment of the execution of said assignment, it would be absolutely void, and that no subsequent act of ratification on the part of the non-executing partners would be sufficient to give validity to said assignment.</p> <p>He therefore concluded that the plaintiff was entitled to the relief prayed for, and directed that a decree might be drawn by the plaintiff, and settled before him on notice.</p> <p>The judgment was accordingly settled, and was entered by the clerk upon the direction of the referee, without any application to the court.</p> <p>The defendants Bowles, Stetson, and Bowles having excepted to the report, appealed from the judgment to the court at general term.</p>

This case and another, viz., Duncan a. Bradstreet, came before the court at the same time for the taxation of the sheriff’s charges under attachments.

Taxation of sheriff’s fees. In this action an attachment against the property of the defendant had been issued, and levied by the sheriff pursuant to the Oode of Procedure, and upon the settlement of the action between the parties, the sheriff claimed, with other fees, commissions on the amount of the property levied on at the rate allowed to official trustees in insolvency eases, and sirpilar proceedings under the Revised Statutes.

An attachment was issued to the sheriff in this action by virtue of which he attached a balance of $4,943.01, in the German Savings Bank, belonging to the defendant, Gustavus A. Scheldt, and received from the cashier of the bank-.a meniorandum of the fact. A settlement or compromise having been made between the parties, the sheriff rendered a bill for $78.67, being his poundage and service-fees.